Yesterday the New York Police Department
announced a new policy under which people caught with small
amounts of marijuana in public generally will not be arrested but
will instead be cited for a violation
punishable by a maximum fine of $100. Police union officials were
not pleased. “I just see it as another step in giving the streets
back to the criminals,” Michael Palladino, president of the
Detectives’ Endowment Association,
told The New York Times. “And we keep inching closer
and closer to that.”
Palladino’s comments were reminiscent of the response from Ed
Mullins, president of the Sergeants Benevolent Association, to
a recent report that the NYPD will no longer use “buy and bust”
tactics to nab small-time pot dealers. “If the current practice of
making arrests for both possession and sale of marijuana is, in
fact, abandoned,” Mullins
told the New York Post last week, “then this
is clearly the beginning of the breakdown of a civilized
society.”
Some historical perspective might allay the fears of those who
believe that civilization cannot survive a reduction in pot busts.
New York’s legislature decriminalized marijuana possession way back
in 1977, making people caught with up to 25 grams (about
nine-tenths of an ounce) subject to the aforementioned fine instead
of arrest and possible jail time. Possessing marijuana that is
“burning or open to public view,” a.k.a. “criminal possession of
marihuana in the fifth degree,” remained a Class B
misdemeanor, punishable by a $500 fine and up to three months
in jail. But according to data gathered by Queens College
sociologist Harry Levine, arrests for that offense were
relatively rare from 1978 until 1997, the fourth year of Rudolph
Giuliani’s administration, when they increased dramatically from
less than 10,000 to almost 18,000. After that they kept climbing,
peaking at more than 51,000 in 2000 but never again dropping below
27,000.

Levine found that the NYPD
averaged 2,259 minor pot busts a year under Ed Koch, 982 under
David Dinkins, and 24,487 under Giuliani. Michael Bloomberg outdid
even Giuliani, presiding over a cannabis crackdown
that generated an average of nearly 39,000 low-level possession
arrests a year.
There are several possible explanations for this enormous
increase in pot busts. Perhaps cannabis consumers suddenly became
much more brazen, waving their weed under cops’ noses in a way they
didn’t from 1978 through 1996. Perhaps they always carried their
cannabis conspicuously, and cops suddenly decided they would no
longer accept such ostentatious violations of the law. Or perhaps
cops started to bust people for having marijuana “open to public
view” after patting them down or instructing them to empty their
pockets during street stops.
Those explanations are not mutually exclusive, but reports
from defendants and their lawyers suggest that the practice of
transforming violations into misdemeanors by bringing marijuana
into “public view” was
pretty common. It was common enough to generate an
extraordinary 2011 directive
from Ray Kelly, Bloomberg’s police commissioner, reminding his
officers that such trickery is illegal. “To support a charge [of
criminal possession], the public display of marihuana must be an
activity undertaken of the subject’s own volition,” Kelly wrote.
“Thus, uniformed members of the service lawfully exercising their
police powers during a stop may not charge the
individual with [criminal possession] if the marihuana recovered
was disclosed to public view at an officer’s
discretion.”
It so happens that 2011 was the peak year for pot
busts during the Bloomberg administration, so maybe Kelly’s memo
had an impact. Marijuana arrests fell from more than 50,000 in 2011
to less than 29,000 in 2013. The decline also coincided with a
sharp drop in stop-and-frisk
encounters.
The Times
notes that “critics have said the police and prosecutors have
been improperly charging people with possession of marijuana in
public view, often after officers ask them to empty their pockets
during street stops.” But yesterday Kelly’s
successor, Bill Bratton, “said such practices were not now in use
and the problem had been fixed.” If so, it’s a
bit mysterious how the new policy will result in fewer pot busts,
especially since the NYPD will continue to arrest people who are
openly smoking cannabis. Will the impact be confined to people who
have removed joints from their pockets but have not lit them
yet?
However the NYPD manages it, any reduction in pot busts
will be an improvement, and Mayor Bill de Blasio deserves credit
for belatedly following through on his
promise to change an “unjust and wrong” policy. But if you
worry that the shift signals the end of civilization, note that the
NYPD could cut low-level possession arrests in half and still bust
a lot more pot smokers than it did in any year prior to
1997.